Monthly Archives: July 2015

When the Loose Ends are People

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In September/October 1938, Hitler, with the active connivance of the cowards in Downing Street, dismembered a sovereign neighbor state, Czechoslovakia.  This despite the very specific French treaty with Czechoslovakia which had been signed for the very express purpose of thwarting German aspirations against the Czechs’ territory.  Had Chamberlain been willing to support the French by watching their backs on the Rhein, the French were willing to honor their treaty commitments to the Czechs.  But Chamberlain was a coward, and his ruling Conservative Party had so neglected (under the circumstances, one might with some justice say “subverted”) the Empire’s defenses that Neville backed down, leaning on the French to do the same, and thereby selling out France’s treaty partner.

As only became known five years later, when the July 20 conspirators were in the process of being liquidated, had Chamberlain not chickened out in fall, 1938, there were armed groups of assassins literally gathered within blocks of the government district in Berlin, with detailed plans to kill or capture the entire Nazi senior leadership and liquidate the National Socialist state.  They were standing by for orders which their leaders expected to be able to give them at any moment.  Most of the senior military command was on board with the plot; Czechoslovakia had extremely formidable defenses and a very-highly-regarded self-defense capacity.  But when Chamberlain caved and the military realized they were going to be handed the Czech defenses without a fight (I can’t recall which of the senior German commanders it was who, upon touring those defenses later, opined that there was no way they’d have taken them by assault), leaving the balance of the country indefensible, they were unwilling to move forward and the whole thing fizzled.  The armed men stowed their weapons and went home.  Many of the top players later were hanged for their parts in the July 20 conspiracy, or for their associations with those folks, or, in the case of Admiral Canaris and his assistant, Major General Hans Oster, when their parts in the 1938 conspiracy came to light in consequence of the post-1944 purges and investigations.

In March, 1939 Hitler completed his liquidation of the rump Czechoslovakian state.  The Western powers looked on in fear.  Britain’s response was to issue the unilateral guaranty of Polish territory which then was called on September 1, 1939, when Hitler sent his armored columns swarming into that country.  With eventual results as known.

Hitler’s pretext for his initial assault on Czechoslovakia was the Sudeten Germans, who had settled in Bohemia centuries before, as early as the 12th Century, at the invitation of the then-kings of Bohemia (this was even before the Habsburgs acquired the franchise, so to speak).  What is important to understand is that the areas in which they principally settled never were part of any of the lands which later went to make up the German Reich.  The Germans who settled there occupied precisely the same relationship to their land of origin as the Chinese who settled in Manhattan.

All that notwithstanding, the Nazis cooked up this “heim ins Reich!” movement among the nationalistic elements of the Sudeten Germans (although they’d also settled elsewhere — Franz Kafka was a German Jew born and raised in Prague — they were concentrated in the Sudetenland).  I’ve never read a specific history of that era in that place and among those specific actors, but what is pretty easy to glean is that Hitler was using the Sudeten Germans to de-stabilize the Czech government, both from within (via the usual 1930s-vintage political thuggery) and from without, as Dear Concerned Führer stepped forward to offer himself as their protector.

Suffice it to say Hitler got everything he could have dreamed of, and more.  The Sudeten Germans went heim ins Reich, all right, and a fat lot of good it did them.  And then of course Hitler loses the war and offs himself, leaving the Sudeten Germans to their fate.  And what a fate it was.  Gentle Reader must understand that Reinhard “Hangman” Heydrich earned his nickname as the deputy “Reich Protector of Bohemia and Moravia,” which is to say, a good chunk of what had been Czechoslovakia before the war.  The Czechs took him out in mid-1942, using explosives dropped to them by the British.

When the war was over, Edvard Benes (sorry: can’t rig the diacritic over the final “s”; Churchill, by the way, pronounced his name “Beans”), the Czech president so viciously sold down the river in 1938, resumed his office, and promptly set about giving the Sudeten Germans their stated wish, insofar as that conformed to what they’d allowed to be done in their name seven years before.  He expelled them en masse, back to the dear ol’ Reich.

Seventy years ago today, in a town then called Aussig (now called Usti nad Labem), there was an explosion in town, in a former sugar factory (must have processed sugar beets there).  In the time-honored tradition — think principally of what happened to towns’ Jewish populations from the 14th Century onward every time the plague, or the cholera, or a swarm of locusts, or whatever passed through — the locals decided it must have been the work of the (newly declared) outsiders, viz. the Sudeten Germans.  And the pogrom began.  Their homes were ransacked, their businesses trashed, they were herded into the streets — men, women, and children indiscriminately — and beaten, or shot.  Quite a number of German workers on their way home after shift were crossing a bridge over the Elbe on their way home.  They were thrown into the river and shot as they swam.  Total dead may have been over 200.  No information about the total injured, or the extent of the property destruction.

The bridge the workers were thrown from was at the time, and to this day remains, named after Edvard Benes.  It was Benes and his administration who crafted the expulsion statutes.

Since the fall of the Iron Curtain there has been some movement of reconciliation between the Czechs and the Germans.  But from this write-up about the pogrom at Aussig in today’s Frankfurter Allgemeine Zeitung, it seems to be of extremely modest extent.  In fact it seems that the Czechs have held, more or less, to a philosophy of good riddance.  They certainly didn’t ask for the war.  In truth, in 1945-48 as the new political and ethnic polarities of post-war Europe were taking shape, can you really blame someone who was born and grew up in a Wilsonian hell-hole of “self-determination” among the crazy-quilt patchwork of Eastern and Central Europe for deciding that he was going to lance, once and for all time, that particular ethnic boil?

The Sudeten Germans were a loose end in July, 1945.  And they got tied up.  The dead among them as well must be reckoned with the war’s casualties, as must the dead in Poland, where the killing also extended for months past the war’s nominal end.

As with so many other things, I confess myself ambivalent about what happened to the Sudeten Germans.  It was unspeakably cruel, of course, forcibly and with no compensation at all, to uproot an entire people from what had been their homeland for up to 700 years.  On the other hand, so long as they were there they were available for further exploitation by future unscrupulous madmen, uses which the Czechs had just watched play out on their own home soil.  Gentle Reader might protest, “But the war was over.  Everyone could tell that would never happen again.  Those days were over and done with.”  To which the only reply is that no one could tell anything of the kind.  “It’ll never happen again,” is precisely what was said in 1918-19, exactly the promise that goofy megalomaniac Wilson made to the peoples of the old Habsburg Empire.  Remind me how that worked out, again?

I’m paraphrasing here, but I recall running across a quotation from Winston Churchill, from when he was First Lord of the Admiralty.  He presided, as Gentle Reader will recall, over one of the most portentous arms races in human history, the naval capital ship race between Imperial Germany and Great Britain.  Someone tried to downplay the necessity of Britain’s engaging in and winning that race by pronouncing that of course Germany would never dream of attacking Britain and destroying its existence by intercepting its sea lines of communication.  Churchill pointed out that at the Royal Navy it wasn’t their job to see that Germany wouldn’t do it, but rather that it couldn’t.  I will submit that in the immediate post-war years, Edvard Benes was faced with similar considerations.  Gazing out over his bleeding, war-torn land, his job was not to see that groups like the Sudeten Germans wouldn’t again be used to destroy the country he was sworn to defend, but that they couldn’t be so used.

And so the Sudeten German question got finally resolved.

The Things You Learn

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One of my favorite books is William Manchester’s The Arms of Krupp.  I have it in paperback and it’s been read enough that my copy is falling apart.  Once day I suppose I’ll hunt up a hardcover copy on Amazon, but that’s a priority that’s going to have to wait.  I have a few of Manchester’s other books, including his now-completed (posthumously, by his hand-picked editor) biography of Churchill — The Last Lion — and the last book, I think, that he ever wrote himself, A World Lit Only by Fire, a book about the world and plane of human understanding shattered by Magellan’s voyage.

At the risk of understatement, in the Krupp history Manchester avoids the pitfall of falling in love with his subject.  Rather the opposite; in fact, at least some contemporaneous reviews — here, for example — took him to task for erring too far in the other direction.  A few years ago, a Harold James published a new history of the family and its company, Krupp: A History of the Legendary German Firm (here I am violating one of my informal rules (hey, it’s my blog, right?), namely that of not linking to books that I have not read), which has been favorably contrasted — here and here, for example — to what is now perceived as Manchester’s lop-sided portrayal of the family and its doings.

All that is as it may be, as the English say.

I wanted to focus on a person who figures prominently in the latter part of Manchester’s book, a boy name of Berthold Beitz.  Beitz was brought in as the front-man of the firm in the 1950s.  He’d been head of an insurance company after the war.  Here it is helpful to understand the outsized role that insurance companies play in the German economy and in society.  Let’s just say that insurance occupies a much more honored niche in both than is the case here.  Manchester portrays Beitz as being almost a cartoonish wanna-be American.  Using first names.  Glad-handing.  Everything big, loud, and overdone.  Very much contrary to how the family and firm had done business before.

The family and firm had need just at that time (1953) of a front-man.  Alfried Krupp, the last sole proprietor, was then still somewhat in bad odor, he having been caught with a large number of dead slave laborers about his person.  Manchester’s book is in fact dedicated to the nameless dead children in the cemetery at Buschmannshof, in Voerde-bei-Dinslaken, who were born to Krupp’s slave laborers, died, and were buried there.  His father, Gustav Krupp von Bohlen und Halbach — who was not even a born Krupp; the Kaiser himself gave Gustav the Krupp name upon his marriage to Bertha (for whom the Big Bertha siege gun of the Great War was nicknamed) — was to have been one of the defendants at the first Nuremberg trials, sitting in the dock with Goering, Heydrich, Sauckel, and the rest of them.  That’s how egregious their behavior was.  But by the end of the war Gustav was a drooling imbecile and in fact had in 1942 (I think; it may have been the next year) given the entire firm to his son Alfried.  For whatever reason the Allies never tumbled to that fact, and so Alfried, under whom the worst of the firm’s wartime atrocities occurred (Manchester even cites to an occasion on which the S.S. complained of how Krupp was treating its slave laborers), escaped a hanging court.

So Beitz was brought in as the first outsider to have a decisive voice in the firm’s running.  Manchester portrays him has more or less running it into a ditch, over-extending it with questionable dealings with Third World countries and Warsaw Pact countries, the abilities and willingness to pay of which were all dicey at the time and proved to be the firm’s undoing.  Again, according to Manchester (it’s been several years since I re-read the book), the firm began doing an ever-greater percentage of its business in places where a prudent vendor would have given serious thought to the merits of up-front payment.  And then of course those same “developing” (a misnomer: they didn’t “develop”; the West developed them, and paid through the nose for the privilege) countries welshed on enormous contracts, which drove the firm from private ownership.  Ended up going public, a step which the Founder, Alfred (his parents gave him the English spelling of the name) had vehemently opposed.  Of course, to complete the irony, Krupp and Thyssen have now merged (look at the next elevator Gentle Reader rides in).  Thyssen was Alfred Krupp’s arch-enemy back in the day.

The merger, by the way, was Beitz’s doing.  He stayed with the firm for 60 years, and died July 30, 2013, just shy of his 100th birthday.

What I didn’t know until I read his obituary in the Frankfurter Allgemeine Zeitung (sorry, their archives are pay-walled) was that he was inducted into Yad Vashem for his actions in saving Jews during the war.  He’d been in charge of a large petroleum facility in the Ukraine, sufficiently high up that he had the power to designate workers as critical war workers.  He also was sufficiently lofty to receive advance notice of proposed round-ups and liquidations.  And so he began using his critical-worker designation powers willy-nilly.  In favor of all manner of people, including children.  He and his wife also hid Jews in their home.  According to the Wikipedia write-up here, he was eventually credited with saving on the order of 800 Jews from extermination, for which he was honored by Yad Vashem as Righteous Among the Nations.  It is, I understand, the highest accolade that the children of Abraham can bestow upon a Gentile.

I can think of no higher recognition than to be recognized in one’s own lifetime as Righteous Among the Nations.  Has a biblical ring to it which sort of chokes one up, upon reflection.  I think what impresses as significant is the mental image of the individual standing on his own, alone, among the nations of all the earth, all acknowledging his virtue and courage (part of the selection criteria for Yad Vashem is that the person must have acted as he did at peril of his own life, and for the purpose of saving the lives of Jews).

I don’t know whether Beitz’s war-time rescue activities were widely known when Manchester was writing (his book dates to the late 1960s, which means it would have been researched and written towards the middle of the decade).  Would knowledge of that have altered how he was portrayed in the book?  I’d sure hope so, given how negatively he is shown.

The take-away from all this is that it’s going to be a long, long time before the last is written or spoken upon any of us.

Farewell and rest in peace, Berthold Beitz, Righteous Among the Nations.

Perhaps not the End of Days

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But certainly more than slightly reminiscent of the latter days of the Roman Empire.

The other day I went to a first-run movie, a thing I seldom do.  In fact, I’ll go farther: a thing I pretty much studiously avoid doing.  But my father, who adores movie popcorn and has few other pleasures left in life other than his dog, likes to go and I go with him.  He likes to get the exact middle seats of the very top row, and grouses if there are more than four other people in the theater.  Same thing with restaurants, by the way.  Part of me delights in the magisterial disregard of the basic logic of the thing:  If it’s worth seeing, or worth eating there, people are going to go.  If you want it to yourself you more or less have to confine yourself to places and things that are not desired.  Part of me gets very fatigued with the expression “jammed up” to refer to any crowd in excess of ten.

Be all that as it may, we went to see Spy, a fairly harmless and mindless comedy vehicle for the lead actress, Melissa McCarthy (who came close to stealing the show in Bridesmaids).  If F-bombs tossed about like confetti upset you, it’s probably not a movie for you.  It certainly isn’t for younger children.

Enough of the feature.  Getting there as early as we did — and do, considering my father’s morbid fear of not getting the Right Seats — we got to see the trailers.  Among them was a trailer for what seems to be a television show, which these days is, as I understand, equivalent to saying “reality” television show.

I have very few accomplishments in life I can point to.  Among them is that I’ve never seen an installment of Here Comes Honey Boo-Boo, or Jersey Shore, or Swamp People, or Real Housewives of East Jesus, Arkansas, or even much of Duck Dynasty.  All the Survivors and their interminable spin-offs have also left me serene in my pop-culture ignorance.  I now have another to add to the list.

Gentle Reader, we are about to witness a show identifying itself as Little Women: LA.  This show is about midget and dwarf women, in Los Angeles.  When one is an abnormally small female in Los Angeles, apparently the thing to do is behave trashy.  People will film you, and then (shudder) a country full of people will watch you behaving trashy.

Consider how many ideas for television shows get pitched every day in Hollywood.  Consider how many people in how many roles and with how much money and influence must all sign off on the concept, the financing, the production details and budget, the marketing strategy, and on and on and on.  Consider how few of the ideas pitched ever see so much as a minute of production.  Consider how many of the ones that actually do get so far as having a pilot filmed get canned before ever being shown.  What I’m getting at is that the tripe that makes it onto your television screen on a daily basis, Gentle Reader, is the surviving remnant of not just a mountain, but an entire mountain range of Stuff That Didn’t Make the Cut.

All of which is to say that, while we might not know their names (I’d hope they’d have enough self-respect to give false ones in the credits: “Executive Producer:  Vyacheslav Molotov; Casting Director:  Richard M. “Bingo” Little.  Editing:  Boris Godunov.  And so forth.), we know by the tracks they are about to leave across the smoldering remains of American pop culture that they do exist.  They are all the people who thought this was a Good Idea.  Stop and ponder, Gentle Reader what must have been the ones they thought too silly, too degenerate, too uninteresting to the breadth of the American television consuming public.

Many years ago, while I was stationed in Charleston, South Carolina, the state legislature felt called upon to outlaw a sport, self-explanatorily identified as “dwarf tossing.”  I understand it involved, other than the physical actions which gave it its name, a great deal of beer.  I assume the dwarves were willing participants (never so familiarized myself with it as to know how they were compensated).  Can’t say that I ever saw an evening of dwarf tossing advertised on any venue I drove past (maybe I just wasn’t driving through the right parts of town in the right parts of the state), but I’m not sure how the Scourge of Dwarf Tossing came to be viewed as such a crisis.  Again, this sounds like the sort of function where one gives a false name at the door, just in case there’s a raid and your picture appears on the front page of the local paper.  Caption:  Leon Trotsky, 43, of Spartanburg, is arrested after police raid dwarf tossing den.

Iran is getting the Bomb, the U.S. Supreme Court is re-writing statutes for the express purpose of saving them from the drafters in Congress, Greece has wheedled the EU, which jolly well knows better, into handing over another several billion Euros while they pass empty reform measures they have no intention of ever putting into effect . . . and we’re watching Little Women: LA.  I’ve read several books on the end of the Roman Empire, all the way from Gibbon to more recent re-examinations, but a common theme is that those responsible for keeping Rome shiny side up and rubber side down just finally gave up on it.

As I ponder Little Women: LA, I have to ask myself whether we’ve given up on this peculiar experiment in self-government.

The Stars and Bars

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Among the things going in the world while I was buried up to my eyebrows in trials was this bigot fellow sat down with the pastor and several members of the congregation at one of the most historically significant black churches in the United States, engaged in “bible study” with them for over an hour, and then shot nine of them dead, leaving two surviving for the express purpose of telling the world what he did.

This actually was a “hate crime,” if by that term you mean a crime whose underlying motive was animosity towards the victims based on something other than their actions or freely-chosen affiliations.  Like what happens to Jews all over Europe and elsewhere on a daily basis.  Like what happened to the manager of that French factory who got his head sawed off by one of his employees who propounds the Religion of Peace.  Like what happened to the dead and wounded at Fort Hood at the hands of a madman screaming Allahu Akbar! while gunning them down.

While the people of Charleston — a magical city where I was privileged to live for four years, many years ago — both black and white, showed the rest of the country how it’s done, in coming together in their grief, their outrage, and their demonstration of the very Christian virtue of forgiveness, the opportunity to strut and preen was just too tempting for the usual suspects.  Dear Leader of course chimes in on cue with the call to ignore that pesky ol’ Second Amendment, which he lards up with a slap at America and Americans.  “‘This kind of mass violence does not happen in other advanced countries,’ the president said. ‘Wedon’t have all the facts but we do know that once again innocent people were killed in part because someone who wanted to inflict harm had no trouble getting their hands on a gun.'”  Of course, this month Europe is observing the 20th anniversary of the massacres at Srebrenica.  We know Dear Leader can’t count (“all 57 states,” anyone?), but just to make it simple, this scum bag in Charleston gunned down nine people because of the color of their skin.  In Srebrenica they gunned down 8,000 men and boys because of how they worshipped.  Or how about the Christians paraded on the beach and then beheaded?  Remind me again how many that was?  Bit more than nine, as I recall.  And wasn’t it just recently that a satire magazine’s office in Paris got to experience some of that ol’ “workplace violence” courtesy of the Religion of Peace?  Twelve dead, weren’t there?

But back to the title of this post.  In the weeks since the Charleston shooting everyone and his cousin has been falling all over himself to expunge all traces of the Confederate flag from public spaces and even from commerce.  Apple, for example, has discontinued a video game app of Civil War combat . . . because the Confederate flag is depicted in it.  You don’t say?  Have they discontinued all the World War II games because you can see the insignia of Nazi Germany in them?  In South Carolina the (Republican-dominated) legislature voted massively to remove the flag from the state house, where (Democrat) governor Fritz Hollings put it in 1962.  Think about that:  The cradle of secession somehow managed to soldier along for nearly a full century without waving that flag.  Amazon and Wal-Mart do not sell merchandise depicting the Confederate flag any more. Around here where I live I can’t say that I’ve noticed either greater or lesser display of it (although I’d be guilty of over-statement to say that I’ve really been looking).

Certainly opinion in general on the flag and its symbolism doesn’t seem to have shifted much.  Fifteen years ago 59% of people surveyed (I think it was a Gallup poll, but don’t hold me to that) allowed that they did not perceive it as being principally a symbol of hatred.  In the aftermath of the Charleston shooting that’s down all the way . . . to 57%.  I suppose you can read that either of two ways: (i) Proof positive that America is an inherently racist country which isn’t willing even to give up the visible and historically undeniable symbolism of racial oppression and exploitation, or (ii) All this hand-wringing and posturing (see: Apple) is vastly over-blowing a non-issue.

I confess to ambivalent feelings about that flag.  As the reader of this blog will have observed, I’m not terribly apologetic about the South or being from the South.  I kinda like it here (as do the tens of thousands of my black fellow citizens who are moving here from the O! so Tolerant North).  So far as I know none of my Southern ancestors owned any slaves, and among my Yankee ancestors is at least one veteran of the Army of the Tennessee (excellent history of that amazing army here (I think, in fact, that my ancestor’s name even appears in it, but that’s not been confirmed); Victor Davis Hanson treats of the army’s march through Georgia in a wonderful book that — alas! — because it was borrowed, I had to return).

Did my Southern ancestors profit from the existence of chattel slavery in their society?  Well, possibly so, although I’d like to see someone try reliably to measure how much better off a small, non-slave-owning farmer in this part of the South really was because of slavery as such.  I will point this much out:  It wasn’t the destruction of slavery that wiped out such large swathes of Southerners, but the physical destruction of the war.  Before the war they’d been more or less scraping by; after the war the people whose homes and farms weren’t burnt to the ground were still more or less scraping by, and the ones whose homes and farms had gone up in smoke to make Sherman’s neck-ties were wiped out.  If slavery as such was that much the foundation of prosperity for any significant portion of the population, then you’d expect to see vastly more disruption just from abolition.

In point of fact at home I actually have a full-size, flyable (it’s of real bunting, with brass grommets) Stars and Bars.  Haven’t laid eyes on it since about 1991; it’s packed up in a box somewhere.  I have a print of a Civil War painting depicting fraternization between the lines (a genuinely common occurrence); back in the day I folded the flag carefully so a single star showed in the center, then draped it across the top of the picture frame.  So sue me.  So far as I know that flag has never actually flown or been displayed so as to be visible from outside the room where that picture was hanging.

Is it a symbol of hatred and oppression?  It sure is for some people, like that shit-bird in Charleston.  It sure is for American blacks (in contrast to that 57% figure cited above, something like 85%+ of blacks perceive it to be inherently a racist symbol), and understandably so.  I’m equally sure that for quite a number of people it symbolizes something else entirely.  That’s the thing about symbols:  The viewer reads into it what he chooses.  But mostly I’m sure that for millions of people the Stars and Bars is a whacking great pile of Get Over It Already.  Like me.  It is neither inherently racist nor inherently innocuous.

Should that flag be flown over public buildings?  I don’t think that’s appropriate, even if only for the fact that for so many of my fellow citizens it in fact does, and on legitimate basis, speak to them of racial hatred, oppression, and the entire sad story of what has happened through the years to the descendants of the Africans brought here in chains (although, irony alert! those descendants are pretty uniformly vastly better off in every material sense than the descendants of those Africans who captured their forebears and sold them into slavery).  As a government we are supposedly all for one and one for all; you shouldn’t knowingly and gratuitously offend 13% of your population.

On the other hand should all these private actors get all hyperventilated about rushing to expunge all traces of the flag?  Well, that’s their privilege, of course.  But it savors of more than just a tiny bit of moral posturing.  They were perfectly willing to deposit all those sales receipts for all those years, and somehow their black customers and their white customers always seemed to survive the trip up and down the aisles.  They’re perfectly willing to flog communist chic apparel (Che Guevara very intentionally had his office overlooking the execution yard so he would watch his victims being slaughtered day by day . . . his picture is very much still for sale on Amazon).  I’d be wiling to bet not a single World War II video game is going to be taken down at the Apple (or Google) store, just because there happens to be a swastika waving somewhere in the background.

I forget who it was who first pointed this out, or where I first ran across the observation, but it’s true, I think:  Much of political correctness is about permitting one group of white people to feel morally superior over other white people, and to parade that superiority as conspicuously as they can.

Seems to me that’s what’s going on here.

I’m not getting rid of my Confederate flag, and it can jolly well stay in that box in the attic.

Of Elephants

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Back in the 19th Century, it was rare for anyone living out in what is now generally referred to as “flyover country” ever to have seen an exotic animal.  There were pretty much no zoos, and back then the notion of loading up the family and going on a “vacation” didn’t exist for any but the very, very wealthy, and they didn’t live in small-town America.  About the only time that your typical 1840s child had a shot at maybe seeing something so outlandish as an elephant was when the circus came to town.  Back then, the circus company, in addition to setting up the big top outside town, would parade through town, with its dangerous beasts in cages on wagons, and invariably The Elephant being the star attraction.  The kids — especially the farm kids — would come from miles around “to see the elephant.”

The experience of “seeing the elephant” and making a special effort to do so was so common that “to see the elephant” became a metaphor for any Life Experience long desired and finally attained.  In the Civil War, the initial experience of combat — remember that thousands of young men had enlisted in fear that they might miss out on the fun — was universally known as “seeing the elephant.”  There is a very famous letter from a soldier to his family back home (it’s quoted in Ken Burns’s film series, although I first ran across its mention in Bruce Catton, if memory serves), right after his first battle.  At some point in the letter he allows, “Well sister I have seen the elephant, and now I don’t want to be a soldier no more,” or words to that effect.

These past two weeks I have seen the elephant.

I post under the nom de blog of Countrylawer because that’s what I do for a living.  Been doing it for roughly 20 years, give or take a bit.  I don’t do criminal defense and I don’t do either plaintiffs’ tort or insurance defense litigation.  Which is why I’d lasted so long without ever trying a case to a jury.  Such courtroom work as I have done, up until now, has all been bench trials.  Commercial contract disputes, eminent domain, deficiency actions, land title and boundary lines, business entities, and so forth.  I got started on a jury trial a couple of years ago and then the judge made an absolutely imbecilic evidentiary ruling which resulted in a mistrial.

Way long time ago — January, 2006, to be precise — I filed a bad house case on behalf of a couple who’d built their dream house and within less than a year of completion the thing was coming apart on them.  Massive water intrusion into the basement, exterior walls out of plumb, the entire brick veneer bleeding white all over, the dining room ceiling repeatedly leaking despite the contractor’s repeated statements that he’d fixed the problem.  And then the foundation walls started sprouting cracks; some vertical, but some horizontal, and it’s the horizontal cracks that are the more serious.  What a horizontal crack is telling you is that your basement wall is bowing inward from lateral pressure on the outside of it.  As things later turned out, the basement walls (concrete blocks) had been built eight feet below grade, with zero reinforcement of any kind in them.  The brick veneer had been largely put on in weather that was getting down below 24 degrees at night, with no protection from the elements.  What was supposed to have been a 1″ air void behind the veneer was partially plugged in large areas by enormous cakes of excess mortar, some of them three feet tall and ten or more feet long.  The windows had been flashed so that water would run behind the house wrap vapor barrier, which itself had been installed in part reverse-lapped, so that it would channel water into the interior of the wood frame.  And the wall penetrations had no through-wall flashing or weepholes beneath them so that water intruding would find its way back to the surface.  The chimney, the first time they lit it off, bled oozing, sticky, black creosote all over its surface (interestingly the heaviest concentration of creosote matched, on a 1:1 basis, the areas of strongest white leaching on the brick’s surface before they began using their basement wood stove).  And so on and so forth.

I sued their builder, who hired a lawyer who has a reputation for taking very aggressive positions on his clients’ behalf, even when that’s not necessarily in his client’s best interests.  As happened now.  We did depositions, we did discovery, we had petrographic examination of brick and mortar sections of the veneer (had to fly to Chicago to take our petrographer’s deposition), and on and on and on.  The case took forever, in no small measure because it took roughly a year to get them to make discovery.  We finally got the thing set for trial in early June, 2013.  That was continued at the defense’s request to October, 2013, which was continued once more, again at the defense’s request, to February of this year, which was continued by the court sua sponte (perhaps uncharitably, I cannot dispose of the suspicion that the last continuance came about because the judge before whom it would be heard was new to the bench and had never practiced civil law a bit, having been an assistant district attorney for 25 years).

So we finally had our trial date beginning June 22.  It took eight mortal days of proof, and over a full day of jury deliberations, but we got our verdict yesterday evening.  Although they didn’t give us everything we asked for, it was still a plaintiffs’ verdict, and the jury specifically ruled in our favor on every single count of the complaint.

Now I can say I’ve seen the elephant.  Here are some things I hope I have learned.

1.     Do as much of the work up front as you can.  I had done my requests for jury instructions and special verdict form two years ago.  Everything was just so and all I had to do was print them out, make service copies, and ship them out before trial.  By like token I had combed and combed and combed through all the parties’ and witness depositions, cross-indexing, gathering specific quotations with page citations into themes, and so forth.  While it didn’t completely avoid some late nights during trial, there was only one night I dragged back into my house past midnight, and that was the last night before cross-examining the defense’s star witness, their consulting engineer.

2.    Include not just citations to authority in things like requests for jury instructions.  Put in the actual quotations of the relevant language so the judge can see for himself that you’re not just making it up.  Also generate a “clean” copy of the proposed instructions, without citations; save them in as many different document formats as you can, organize them in folders on a CD, and include that with your courtesy copies of your motions that you send to the judge.  Judges and their assistants aren’t any less susceptible to letting someone do their work than anyone else is, and the easier you make it for them to use your work, the more likely you are to own more of the process.  Inertia is a powerful mental force as well as physical.

3.     Eat well, but not copiously, during trial.  This trial was a good 40 minutes away from my home.  So each morning I would grab a 24-ounce cola and have that, with two bananas, on my way to court.  I kept a granola/power bar or two in my brief bag, so that if I weren’t in a position to take lunch I would have at least some fuel.  On those days I did have lunch, it was never more than a 6-inch Subway sandwich, so I never got bogged down in the afternoon.  I’m a big ol’ boy (the less euphemistically inclined would describe me as “fat,” I’m sure), and one of my large concerns was hypoglycemia during trial.

4.     This ties in with doing as much work up front as you can, but get good sleep in adequate amounts.  Remember your body is used to X hours of sleep per night, and if you suddenly ask it to continue for longer stretches on less than that, it will rebel.  I made sure to come home as early as I could, take a shower, grab a modest supper, and then read something that had nothing at all to do with law, lawyering, or especially this case for a half-hour or so.  I’d take a melatonin tablet (never tried them before, ever, by the way) around 8:45 p.m. and by an hour later be turning out the light.  I was able to sleep and get up aware and ready to hit the decks running at 5:30 a.m.  Mental activity uses enormous amounts of calories, and in addition to the adrenaline of a full day in front of the jury, your levels of concentration are going to be ferocious and sustained for much longer periods than you’re used to.

5.     If you can, get your family out of the house.  Spouses and children, especially young children, are going to have a very hard time wrapping their minds around the notion that You Need to Stay Away From Daddy/Mommy until this trial is over.  They’re going to be knocking about the house, making noise, impinging on your dwindling attention energies.  I know it sounds heartless as all get out, but playing with the kids, or playing with the kids’ mommy, is going to tax a limited reserve of psychic energy.  They’ll still be there when the jury has come back; you can catch up with them then.

6.     Get to court early each day.  You need to get set up, get yourself calmed down, and focus in on the work you’ve got ahead of you.  Get there early enough and you should have the courtroom to yourself.  If you should need to finish up your morning business in the bathroom, you’ll be able to do so without risking a jury member strolling in and wondering what just died and can’t you give it a decent burial.  Take a breath.  If you need to set up any demonstrations or suchlike, you can tinker with the physical arrangements.  And if your projector blows a lamp, or your laptop won’t read a disk, or whatnot, you may have time to come up with a work-around.

7.     Google every last single witness.  I mean that:  Search Facebook, Twitter, MySpace, anything.  This especially applies to experts.  In fact, I am convinced that it’s why I got that verdict.  The defense’s testifying engineer was an accomplished liar (he’d screwed over some friends of mine 18 years ago, back when he was, in addition to his regular engineering gig, running a foundation repair service).  And I mean he was good; in some ways I think he could give Bill Clinton a close run.  Perfectly dishonest, of course.  He was perfectly willing to take a photograph of mold growing so thickly on a block wall that it cast its own shadow when photographed with a flash, and testify that was calcium carbonate efflorescence (even though a swab sample of it showed it to be Aspergillus/penicillium).  He did no testing or sampling of anything (or even asked to) in the house over the 9+ years of the suit, and then felt perfectly comfortable sliming the competence, methods, and integrity of a petrographer who not only followed the ASTM book in analyzing the mortar work, but in fact to some degree participated in writing that book, so to speak.

Our petrographer’s résumé listed two and a half pages of publications in all manner of masonry industry publications, as well as papers presented at international industry conferences.  I wanted to see if this opposing engineer had any publications out there, so I looked around.  I didn’t find any, but I did find his blog.  And on his blog I found a blog post.  And that blog post dealt in great depth with an issue that formed a central pillar of his testimony:  To what extent is it appropriate to use residential building code standards to evaluate the workmanship and quality of a house in a county in which no building codes have formally been adopted by whatever government authority would do so?  As you might surmise, on the witness stand he pooh-poohed the notion that the building codes were helpful.  “Out here where there aren’t any codes,” you see, you have to look into what are the “community standards.”  In other words, if every builder in the county builds a lousy building, then it’s perfectly acceptable that you got a lousy building, too.  And on his blog he in great detail and in unambiguous words (that last in marked contrast to his rambling, Cliff Claiborne-like trial testimony) gave exactly the opposite opinion.  As in 180 degrees out.  As in no way to reconcile the same.

Thus, at the bottom of my cross-examination of him, having previously got him to nail his flag to the mast of codes don’t apply here, I popped a print-out of his blog in front of him and then proceeded to read, one juicy snippet at a time, his opinion when he wasn’t being paid for it.

When the jury’s special verdict form came back, it was obvious that they hadn’t accepted any part of his testimony.

8.     Don’t play gorilla.  You’re not a gorilla, and anyone acting like a gorilla who is not, in fact, actually a gorilla only looks silly.  Chest-thumping isn’t likely to work on anyone who’s been doing this for more than six months, and all you’re going to do is convince the other guy that you in fact have that little class.  My learned opposing counsel kept making these just incredibly tacky remarks to me over the course of the trial.  On the first day, at the lunch break, he excused himself with the observation that “we’ve got trials to win.”  Well, dontcha now, buddy?  He kept busting on the minivan I drove to court.  It’s filthy, because for years now it’s sat under an oak tree in my driveway.  Well, what of it?  For starts, those jury members (this was a small overwhelmingly rural county) got to see me loading and unloading myself and my stuff from what was obviously a beat-up old vehicle.  At any rate, Dear Opposing Counsel kept making snide observations about the condition of my van, and at one point he said, “After I’ve won this trial, I’m going to come out to your office and wash your van.”  Knock yourself out.  He borrowed a laser pointer from his engineer, to use while he was taking his engineer through the pictures he took, and during breaks he’d keep shining it at my face.  Never in my eyes, but on my moustache (I do enjoy my soup-strainer), hair, etc.  He even called my attention to it and asked if I didn’t think it just hilarious.  I only observed that me must have been just an absolute prince on Halloween, back in the day.  As I said:  Tacky.  And now he gets to eat his words.

9.     Do not have your gas-bag of an expert witness explain each and every last one of 250-plus photographs to the jury, especially if many of them either don’t show anything that’s directly relevant to the claimed subject matter of the lawsuit, or show the same penny-ante detail from three separate perspectives and with as many different shutter speeds or contrast settings.  This Cliff Claiborne of an engineer just about put me to sleep, and I can only imagine what he did to the jury members, every one of whom could see that was a fucking water stain on a concrete block.  It took hours.

10.     Be very careful how you call a man a liar.  In my closing argument I explained to the jury that they had to decide whether to believe my clients’ engineer, who had not been hired to help in a lawsuit, who had not been hired to come up with any corrective action plan (they had a different engineer do that), but rather had been hired months before anyone lawyered up and only to help two distraught people figure out what was wrong with their house, or alternatively the defendants’ engineer.  Then I observed that if they were going to believe this other fellow, they needed to decide whether they believed the opinion he had when he was undeniably speaking just for himself and wasn’t getting paid for it, or alternatively the one he’d just offered to them on the defendants’ behalf.  And I left it at that.  I also had, after much consideration, decided not to bring out on cross-examination that the defendants’ lawyer was also this engineer’s personal business lawyer.  Two lawyers getting in a pissing contest and descending to personalities is the sort of thing that can put a stranger off, and prompt in him thoughts of a pox on both your houses.  In contrast, during Learned Opposing Counsel’s closing, he alleged that, in presenting the defendants with a detailed, written repair agreement (it even attached the most recent engineering report they’d received the week before) to be signed before they’d let the defendants back on their property to take yet another shot at getting the work right, that I — I, the lawyer — had “attempted to imposed [my] will” on these poor defendants.  Huh?  I just have a real hard time imagining that he scored many points with that theory.  I could be wrong, of course, but I doubt it.  And remember a jury member whom you’ve offended by your conduct is going to do your client’s case a great deal more harm than one who hasn’t formed a personal opinion of you one way or the other can do you good.

11.     Practice with your clients, especially if they’ve never been personally involved in courtroom proceedings.  Then practice some more.  Then some more.  If you have multiple clients (like a married couple), work them through actual outlines of their testimony, both yourself with them and them with each other.  Their answers can’t meander.  They can’t come across as either hesitant or as too-well rehearsed.  They can’t answer you in a questioning tone of voice, as if they were looking to you, the lawyer, for confirmation they’re correct.  They need to practice phrasing answers to include punchy, easily-comprehended visible images.  One of my clients, when I asked why they hadn’t gone behind this builder to check up on every last thing he told them, responded that that’s why they’d hired a licensed contractor; when their car breaks they go to a mechanic; when the husband had a hernia that needed fixing, they went to a doctor.  Avoid trying to script things, however.  It won’t work.  You’ll get a feel that a particular line just isn’t playing well, or something else will come up to knock your flow a little out of channel.  It’s a guide, not a script.  This is not for you and your client to memorize (it’s impossible to memorize proposed testimony anyway), but rather so that your client will feel comfortable with, because thoroughly familiar with, the substance and general phrasing of everything you’re going to ask.

12.     Ask as many of the other guy’s questions for him.  If your client has said something stoopid in his deposition, drag it out.  He might look poorly, but I guarantee he’ll do better at damage control if he’s taken through it by a friendly questioner.  Especially ask the other guy’s rhetorical questions for him.  My clients noticed their house’s moisture and mold problems gradually getting worse over the first summer they lived in the place.  They’d decided to get their contractor back out there in early September, and then a hurricane blew through, causing their dining room ceiling to leak a stream of water for the fourth time (the first three times had been during construction).  They got the contractor out there afterward and he looked at the saturated top-to-bottom basement block walls (including the two-plus courses of block above grade level), and allowed he couldn’t understand where the water was coming from.

So my folks got another contractor out for a second opinion.  That guy recommended a home inspector, who looked around, found indication of multiple other serious problems, and he recommended an engineer, who came, saw, and noted several major issues in a formal report.  My folks got that in early October and, in shell shock, they spent the next five or so weeks gob-smacked.  Then in mid-November they lit fires in their wood stove and the creosote came blooming out.  Beginning the first week of December their rear basement wall grew cracks so fast they were visibly longer from one day to the next.  So they got their engineer back out (he couldn’t make it until after the new year).  But between that early-September visit from the contractor and the second week of January, my people didn’t call the contractor.  The contractor alleged as a defense the failure to provide notice and an opportunity to cure.  And so repeatedly I worked my way back around, with my witnesses on direct, to the question of, “Well, why ever did you not call?”  By the time Learned Opposing Counsel got to cross, they jury would have been thinking This is Old News and They’ve Already Explained It Four Times; Now Move Along.

13.     If you know your clients’ case better than your clients, you’re both in trouble.  They’ve got to be able to articulate, in their own words, in coherent form, what happened, when, in what order, by or through whom, and What It All Means.  If they can’t do that, in painful detail, then they’re not going to be able to convince a jury to make some stranger (at least from the jury’s perspective they’re strangers) cough up money to your client.  Just not going to happen.  I once years ago tried a bench trial on an option to purchase commercial real estate.  The case had been pending for not quite four years when it went to trial.  My client spent seven hours on the witness stand that day, and under cross-examination she was nearly completely unable to explain to the court what she wanted by way of relief and why she thought she was entitled to it.  We won the case, but the judge ruled in a manner that cost my clients about an extra $250,000.  If your client obviously doesn’t know his own damned case, don’t expect your jury to spend much effort trying to understand it either.

14.     Don’t ask your witnesses to be any more positive than they genuinely are comfortable being.  If they’re basically honest, that stretching of their narrative will stick out like spines and the jury will conclude they’re lying.  If they’re basically dishonest (and you know, sometimes the only witness you have to something is one of your county’s notorious crooks; it just works out that way and if that’s the only way you’ve got to get your facts into evidence then you’re going to have to figure it out), you’re shooting dice that nothing will happen like happened to that engineer.  All through my case in chief Learned Opposing Counsel was cock of the walk, strutting about and playing Dutch Uncle to my poor little dirty-assed-van redneck self.  He acted like he had a massive bombshell in reserve, just waiting to chamber it up and send it down-range onto our target coordinates.  After I blew up his star witness in front of God and everybody that sonofabitch “sulled up” as we say around here and spoke scarcely eight words to me until late yesterday afternoon.  All that having been said, if your witness has a fact to recite, or an opinion to form, for God’s sake don’t pussy-foot around about it.  That comes across as dishonest as well.  Purge “I might have,” and “I think,” or “it could be that” or “it might have been” or “As I remember it” from the vocabulary.  This did happen.  So-and-such did not happen.  I saw whatever-it-was.  Don’t have your expert say, “My opinion is such-and-stuff”; you ask him if he has an opinion and let him state his opinion in the form of a fact:  “There was nothing wrong with this house that a little time wouldn’t have cured without spending a bunch of money.”  “There were no termites present on whatever-date-it-was.”

15.     Never, ever, ever, ever put on proof, unless the substance of the claims or defenses makes it absolutely unavoidable, of what your client is paying you or has paid you, especially if you’re a big-city lawyer appearing in front of a jury full of people at least half of whom either live from government hand-outs themselves, or have relatives or friends who do.  Our total claim for compensatory relief was for not quite $90,000; ol’ Learned Opposing Counsel had one of his clients testify that, exclusive of the trial, they’d already paid over $96,000 in attorney’s fees.  That didn’t even get to the engineer’s fees (and they’d paid him to be present for the trial from Day 1).  Think about it:  How likely is it that Average Jury Member is not going to ask himself the deadly rhetorical question, “Wouldn’t it just have been simpler for you to have built the house right in the first place?”

And so I saw the elephant over the past two weeks.  We have post-trial motions and then I am assuming Learned Opposing Counsel is going to file an appeal, which for several tactical reasons I’m all for, since it is likely to make my clients’ ultimate collection much more certain.  I cannot say I have enjoyed it, except to the extent that winning (assuming nothing blows up between here and the final order) beats losing all to hell and gone.  It was an 8-day adrenaline rush and I’m still coming down off it.  But at least the magic spell is broken.

I can do this.